Royalty or Business Income? High Court Clarifies Taxation of Remittances against Software Purchase

Deciphering Legal Judgments: A Comprehensive Analysis of Case Law

Reported as:

2024 (6) TMI 1069 - BOMBAY HIGH COURT

Introduction

The present case revolves around the taxation of remittances made by an Indian company to foreign parties for the purchase of computer software required for its business operations. The crux of the matter lies in determining whether such remittances would be taxable in India as "royalty" u/s 9(1)(vi) of the Income Tax Act, 1961 (the Act), or would constitute business income of the recipient foreign companies.

Arguments Presented

The assessee (Indian company) contended that the remittances made to foreign parties for software purchases should not be taxed as "royalty" u/s 9(1)(vi) of the Act. This stance was initially rejected by the Deputy Director of Income Tax (International Tax), but later upheld by the Commissioner of Income-Tax (Appeals) [CIT(A)].

The Revenue (tax authorities) challenged the CIT(A)'s order before the Income Tax Appellate Tribunal (Tribunal), arguing that the payments made for obtaining computer software were liable to be taxed in India as royalties u/s 9(1)(vi) of the Act.

Discussions and Findings of the Tribunal

The Tribunal observed that the assessee had made purchases of computer software from residents of Denmark and Finland, which would fall under the purview of the Double Taxation Avoidance Agreements (DTAAs) entered between India and these countries. The Tribunal also noted that in the assessee's own case, a coordinate Bench had previously held that similar remittances made to residents of Germany and France were not liable for deduction of tax at source.

Following the decision of the coordinate Bench, the Tribunal dismissed the Revenue's appeal, holding that the remittances made by the assessee for software purchases were not taxable as royalties u/s 9(1)(vi) of the Act.

Analysis of the High Court

Both parties acknowledged that the issue at hand was no longer res integra (undecided matter) in light of the Supreme Court's authoritative pronouncement in the case of ENGINEERING ANALYSIS CENTRE OF EXCELLENCE PRIVATE LIMITED VERSUS THE COMMISSIONER OF INCOME TAX & ANR. - 2021 (3) TMI 138 - SUPREME COURT.

In the Engineering Analysis Centre case, the Supreme Court examined similar transactions involving the purchase of computer software and the applicability of Section 9(1)(vi) of the Act and the relevant DTAA provisions. The Supreme Court upheld the view taken by the Delhi High Court, ruling that the distribution agreements/End User License Agreements (EULAs) did not create any interest or right in the distributors/end users amounting to the use or right to use any copyright. Consequently, the provisions of Section 9(1)(vi) of the Act, along with Explanations 2 and 4 (dealing with royalty), were not applicable.

The High Court, in the present case, acknowledged that the transactions were similar to those considered by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd. Additionally, there were DTAAs in place with the countries whose residents were involved in the transactions with the assessee.

Concluding Remarks

In light of the Supreme Court's decision in Engineering Analysis Centre of Excellence (P.) Ltd., the High Court agreed with the assessee's counsel that the present appeals did not give rise to any substantial question of law. The approach adopted by the Assessing Officer was contrary to the correct position of law as established by the Tribunal and endorsed by the Supreme Court.

Consequently, the High Court dismissed the appeals filed by the Revenue, holding that the remittances made by the assessee for software purchases were not liable to be taxed as royalties u/s 9(1)(vi) of the Act.

Summary

The High Court, following the Supreme Court's decision in Engineering Analysis Centre of Excellence (P.) Ltd., ruled that the remittances made by an Indian company to foreign parties for purchasing computer software required for its business operations would not be taxable in India as "royalty" u/s 9(1)(vi) of the Income Tax Act, 1961. The distribution agreements/EULAs did not create any interest or right amounting to the use or right to use any copyright, and hence, the provisions related to royalty taxation were not applicable.

Also see:

The Cross-Border Software Purchase Conundrum: Supreme Court's Clarification on TDS for Non-Resident Software Transactions as Royalty

Full Text:

2024 (6) TMI 1069 - BOMBAY HIGH COURT